ISLAM & ANOR v MINISTER FOR IMMIGRATION & ANOR

Case •

[2011] FMCA 991

•

13 December 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ISLAM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 991
MIGRATION – Application to review decision of Migration Review Tribunal that it did not have jurisdiction – whether decision to refuse the grant of Temporary Business Entry (Class UC) visa was an MRT-reviewable decision – whether a criterion for a Subclass 457 visa based on a labour agreement is that the applicant is sponsored by an approved sponsor within s.338(2)(d) of the Migration Act 1958.

Migration Act 1958 (Cth), ss.5, 31, 65, 140A, 140E, 140GB, 140GC, 140H, 337, 338, 347, 348

Migration Regulations 1994 (Cth), regs.1.03, 2.01, 2.03, 2.56, 2.58, 2.72, 2,73, 2.74, 2.75, 2.76, 4.02, subcl.457.223 of Schedule 2
Australian Postal Corporation v Forgie and Another (2003) 130 FCR 279; [2003] FCAFC 223
Bropho v State of Western Australia and Another (1990) 171 CLR 1; [1990] HCA 24
Buck v Comcare (1996) 66 FCR 359; [1996] FCA 1485
Esteron v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 126; [1995] FCA 1252
Minister for Immigration and Multicultural Affairs v Lim (2001) 112 FCR 589; [2001] FCA 512
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63
PPHF and Others v Director-General of Security (2011) 193 FCR 436; [2011] FCAFC 70
Thompson v Australian Capital Television Pty Limited and Others (1994) 54 FCR 513; [1994] FCA 1563
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
First Applicant: SHARMA ISLAM
Second Applicant: MD. SIRAJUL ISLAM
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 199 of 2011
Judgment of: Barnes FM
Hearing date: 22 July 2011
Delivered at: Sydney
Delivered on: 13 December 2011

REPRESENTATION

Counsel for the Applicants: Mr N Poynder
Solicitors for the Applicants: Visa Lawyers Australia Pty Ltd
Counsel for the Respondents: Mr T Reilly
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 13 January 2011 in Tribunal case number 1004858.

  2. A writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 2 June 2010.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 199 of 2011

SHARMA ISLAM

First Applicant

MD. SIRAJUL ISLAM

Second Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

  1. This is an application for review of a decision of the Migration Review Tribunal that it did not have jurisdiction to review a decision of a delegate of the first respondent to refuse to grant the applicants Temporary Business Entry (Class UC) visas. 

  2. The applicants are citizens of Bangladesh.  On 10 November 2009 the first applicant (who is referred to for convenience as the applicant) lodged an application for a Subclass 457 Business (Long Stay) visa on the basis that her nominated occupation, “family day care worker”, was to be the subject of a labour agreement between her employer Woden Community Services Inc. (Woden) and the Commonwealth. It appears that the applicant had previously been the holder of a Subclass 457 visa on the basis that she was sponsored by Woden as a standard business sponsor.  The second applicant applied as a member of her family unit. 

  3. In general terms, a labour agreement is a formal arrangement negotiated between an employer and the Commonwealth which enables the employer to recruit a specified number of overseas workers to meet an identified skill shortage in the Australian labour market.  (See the definition of “labour agreement” in reg.1.03 of the Migration Regulations 1994 (Cth), and “work agreement” in reg.2.76 and s.140GC of the Migration Act 1958 (Cth) (the Act).

Delegate’s Decision

  1. On 2 June 2010 a delegate of the first respondent refused the application on the basis that the applicant did not meet the prescribed criteria for the grant of a Subclass 457 visa or for the only other subclass of visa (Subclass 456 Business (Short Stay) visa) within Class UC. 

  2. Part 457 of Schedule 2 to the Migration Regulations contains the criteria for the grant of a Subclass 457 visa. Clause 457.223 requires the applicant to meet the requirements of one of a number of specified subclauses at the time of the decision. According to the delegate, “[t]he only subclause against which any claims or evidence ha[d] been provided [wa]s subclause 457.223(2)” which is applicable to “Labour agreements”.  The delegate found that the applicant failed to meet subcl.457.223(2)(c), which requires that at the time of the decision “the applicant is nominated by a party to the labour agreement.” 

  3. The delegate recorded that the applicant had stated on her application “that she was applying as a person sponsored by an Australian business party to the labour agreement” and that at the time of lodgement of the visa application the “sponsor”, Woden, had “commenced negotiations [with DIAC] for the labour agreement”.  However on 26 January 2010 the Department refused the application for labour agreement approval lodged by Woden.  On 8 February 2010 Woden commenced further negotiations for a labour agreement.  The Department refused that application for labour agreement approval on 2 June 2010. 

Application for review by the Tribunal

  1. On 16 June 2010 the applicants lodged an application with the Tribunal for review of the delegate’s decision.  On 14 October 2010 the Tribunal wrote to the applicants inviting them to comment on the validity of their applications for review.  That letter stated:

    For you to make valid applications for review, at the time you lodged your applications for review your sponsor either needed to be an approved sponsor, or have made a valid application for review of a decision not to approve the sponsorship and the review was pending.  I am of the view that your applications are not valid applications as it appears that when you lodged your review applications your sponsor was not approved and your sponsor had not made a valid application to the Tribunal for review of a sponsorship decision.  However, this is a matter which must be determined by a Tribunal Member. 

  2. The applicants responded to this letter through their lawyer, submitting that the application for review was a valid application for review of an MRT-reviewable decision for detailed reasons which are akin to those put for the applicants in these proceedings. In particular, it was submitted that it was not a criterion for the visa sought by an applicant nominated by a party to a labour agreement that the applicant be sponsored by an approved sponsor and hence that the limit on review applications in s.338(2)(d) of the Act that applied where it was a criterion for the grant of a visa that the non-citizen be sponsored by an approved sponsor was not applicable. It was pointed out that Ms Islam had lodged her application “under the auspices of a Labour Agreement” (that is in reliance on the criterion in subcl.457.223(2)) and did not rely on the criterion based on a standard business sponsorship within subcl.457.223(4)). It was also pointed out that “negotiations for a Labour Agreement with Ms Islam’s employer [we]re still under consideration by the Minister”. 

The Tribunal decision

  1. On 13 January 2011 the Tribunal decided that it had no jurisdiction to determine the review application.  

  2. The Tribunal stated that it only had jurisdiction under the Act if an application was properly made under s.347 for review of an MRT-reviewable decision (see ss.338 and 348 and reg.4.02(4) of the Migration Regulations). The Tribunal referred in particular to s.338(2) which sets out the circumstances in which a decision to refuse to grant a visa is an MRT-reviewable decision which relevantly provides that:

    where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

    (i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

    (ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

  3. The Tribunal was of the view that a decision to refuse the grant of a Temporary Business Entry (Class UC) visa was subject to this provision and that although the requirements of paragraphs (a), (b) and (c) of s.338(2) were met, the delegate’s decision was not an MRT-reviewable decision because the requirements of s.338(2)(d) were not satisfied at the time of the application for review.

  4. The Tribunal stated:

    In the case of a Subclass 457 visa applicant who seeks the visa in relation to an occupation which is the subject of a labour agreement, cl.457.223(2)(b) requires that either: the applicant and a business activity specified in the application and relating to the applicant is the subject of an approved business nomination under r.1.20H as in force immediately prior to 14 September 2009; or a nomination of an occupation in relation to the applicant is approved under s.140GB of the Act.  The nomination of the applicant must be by a party to the labour agreement: cl.457.223(2)(c).  A labour agreement is a “work agreement” pursuant to r.2.76(2) of the Regulations.  A party to the labour agreement (other than a Minister) is, therefore, an “approved sponsor”: s.5(1).  Where an applicant sought to satisfy the primary criteria for the grant of a Subclass 457 (Business (Long Stay)) visa on the basis that the applicant satisfies the requirements of subclause 457.223(4) of Schedule 2 to the Regulations, it was a criterion for the grant of the visa that the applicant is sponsored by an approved sponsor. 

  5. In its findings and reasons the Tribunal accepted that the applicant had lodged the Subclass 457 visa application “on the basis of being sponsored under a labour agreement by the sponsoring employer”.  Woden was described as her “proposed sponsor”. The Tribunal found that a Subclass 457 visa was a temporary visa prescribed for the purposes of s.338(2)(d). It was satisfied, having regard to the visa application form, that “the applicant sought the visa in relation to an occupation which [wa]s the subject of a labour agreement” and concluded that in these circumstances it was “a primary criterion for [the grant of] the visa” that the applicant be “sponsored” by an “approved sponsor”. 

  6. The Tribunal referred to the fact that the Department had refused the application for labour agreement approval lodged by the proposed sponsor on two separate occasions.  It found that “at the time the application for review was made the applicant was not “sponsored” by an “approved sponsor””, that “no review of a decision not to approve the sponsor was pending” and hence that “the requirements of s.338(2)(d) were not met”. On this basis the Tribunal concluded that the delegate’s decision was not an MRT-reviewable decision under s.338(2) of the Act. It was also satisfied that the delegate’s decision was not an MRT-reviewable decision under any of the other provisions in s.338 of the Act and reg.4.02(4) of the Regulations.

  7. The Tribunal addressed the applicant’s submissions that as Ms Islam had lodged an application for a Subclass 457 visa “under the auspices of a Labour Agreement” rather than a standard business sponsorship it was not a criterion that she be sponsored by an approved sponsor so that s.338(2)(d) did not apply to her application. However the Tribunal did not consider that these submissions afforded “any basis for accepting the application for review”. It was of the view that where the primary decision was made on or after 14 September 2009 (the date on which the applicable legislation was amended) the requirements of s.338(2)(d) of the Act applied to an onshore primary applicant who had applied for a Subclass 457 visa under the “Labour agreement” stream, that is, in reliance on meeting the criteria in subcl.457.223(2).  The Tribunal found that it was a criterion for the grant of a visa “under this stream that a nomination of an occupation under this stream, in relation to the applicant, had been approved under s.140GB (see cl.457.223(2)(b)(ii))”. Approval under s.140GB was said to be given in relation to a nomination by an “approved sponsor” and the definition of “approved sponsor” included a non-Ministerial party to a work agreement (s.5(1) of the Act).  The Tribunal was of the view that “[a]s the meaning of ‘sponsored’ include[d] being identified in a nomination under s.140GB of the Act, the provisions of s.338(2)(d) would apply in this circumstance”. 

  8. The Tribunal concluded that as the application was “not properly made under section 347 for review of an MRT-reviewable decision” as required by s.348 of the Act, it did not have jurisdiction in the matter.

These proceedings

  1. The applicants sought review by application filed in this court on 9 February 2011.  The only ground in the application is that the Tribunal “erroneously found that it did not have jurisdiction to consider an application made on 16 June 2010 for review of the [delegate’s] decision to refuse the grant of a Temporary Business Entry (Class UC) visa to the applicants”.

  2. The particulars to this ground are as follows:

    (a) On 10 November 2009 the applicants applied to the first respondent for a subclass 457 Business (Long Stay) visa under the “Labour agreement” stream, pursuant to subclause 457.223(2) of the Migration Regulations 1994.

    (b) On 2 June 2010 the first respondent refused the application. 

    (c) On 16 June 2010 the applicants applied to the second respondent for review of the first respondent’s decision. 

    On 13 January 2011 the second respondent made a decision that it did not have jurisdiction to consider the application on the ground:

    (i) That a decision to refuse a subclass 457 Business (Long Stay) visa under the “Labour Agreement” stream is a decision where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor. 

    (ii) That because the applicants were not sponsored by an approved sponsor the second respondent did not have jurisdiction to consider the application, by reason of s338(2)(d) of the Act. 

    (e) The second respondent was in error because a decision to refuse a subclass 457 Business (Long Stay) visa under the “Labour agreement” stream is not a decision where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor. 

    (f) As a result, the second respondent had jurisdiction to consider the application because the applicants otherwise met the requirements of s 338(2)(a) – (c) of the Act. 

Relevant legislation

  1. Section 31(1) of the Act provides that there are to be “prescribed classes of visas” set out in the Regulations (see also s.5(1) and reg.2.01 of the Regulations). One such class is Temporary Business Entry (Class UC). It contains two subclasses: Subclass 456 Business (Short Stay) and Subclass 457 Business (Long Stay). Section 65(1)(a)(ii) of the Act relevantly provides that if after considering a valid visa application the Minister is satisfied that (among other things) the health criteria and “the other criteria for it prescribed by this Act or the regulations have been satisfied” then he or she is to grant the visa. The prescribed criteria for the grant of a Subclass 457 visa are set out in Schedule 2 to the Regulations (see s.31(3) and reg.2.03).

  2. Clause 457.223 contains criteria to be satisfied at the time of decision.  Subclause 457.223(1) requires the applicant to meet the requirements of one of subcll.457.223(2), (4), (7A), (8), (9) or (10). 

  3. The applicant sought to satisfy subcl.457.223(2) which is as follows:

    The applicant meets the requirements of this subclause if:

    (a) the occupation specified in the application is the subject of a labour agreement; and

    (b) either:

    (i)      both of the following apply:

    (A)    the applicant and a business activity specified in the application and relating to the applicant were the subject of an approved business nomination under regulation 1.20H as in force immediately prior to 14 September 2009; and

    (B)    the approval has not ceased to have effect under subregulation 1.20H (5) as in force immediately prior to 14 September 2009; or

    (ii)    a nomination of an occupation in relation to the applicant:

    (A) has been approved under section 140GB of the Act; and

    (B) has not ceased to have effect under regulation 2.75; and

    (c)     the applicant is nominated by a party to the labour agreement; and

    (d)    if the Minister requires the applicant to demonstrate that he or she has skills and experience that are suitable to perform the occupation -- the applicant demonstrates that he or she has those skills and that experience in the manner specified by the Minister; and

    (e) the Minister is satisfied that the requirements of the labour agreement have been met in relation to the application; and

    (f) either:

    (i) there is no adverse information known to Immigration about a party to the labour agreement or a person associated with the party to the labour agreement; or  

    (ii)    it is reasonable to disregard any adverse information known to Immigration about a party to the labour agreement or a person associated with the party to the labour agreement.

  4. It is relevant to note that another way to meet cl.457.223 is provided for in subcl.457.223(4) which is headed “Standard business sponsorship” and, relevantly, provides that an applicant meets the requirements of that subclause if:

    (a) either:

    (i) if the applicant and a business activity specified in the application and relating to the applicant were the subject of an approved business nomination under regulation 1.20H as in force immediately prior to 14 September 2009:

    (A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and

    (B) the approval of the nomination has not ceased to have effect under subregulation 1.20H (5) as in force immediately prior to 14 September 2009; or

    (ii) if a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act:

    (A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and

    (B) the approval of the nomination has not ceased as provided for in regulation 2.75; and

    …

  5. Division 3A of Part 2 of the Act deals with sponsorship. It applies to visas of a prescribed class (including Subclass 457) (see s.140A and reg.2.56).

  6. Former ss.140B and 140C of the Act which dealt with sponsorship as a criterion for prescribed visas and for valid visa applications were repealed with effect from 14 September 2009. 

  7. Section 140E of the Act now provides:

    (1)  The Minister must approve a person as a sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if prescribed criteria are satisfied.

    Note: A person (other than a Minister) who is a party to a work agreement is an approved sponsor and does not need to be approved as a sponsor under this section: see paragraph (b) of the definition of approved sponsor .

    (2)  The regulations must prescribe classes in relation to which a person may be approved as a sponsor.

    (3)  Different criteria may be prescribed for:

    (a) different kinds of visa (however described); and

    (b) different classes in relation to which a person may be approved as a sponsor; and

    (c) different classes of person within a class in relation to which a person may be approved as a sponsor.

  1. Section 140E obliges the Minister to approve a person as a sponsor in relation to a prescribed class of sponsor (including a standard business sponsor, see reg.2.58) if the prescribed criteria are satisfied.

  2. The term “approved sponsor” is defined in s.5(1) of the Act as follows:

    "approved sponsor" means:

    (a) a person:

    (i) who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and

    (ii) whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or

    (b) a person (other than a Minister) who is a party to a work agreement.

  3. Each of s.140E(1) and reg.2.58 are followed by notes which are to the effect that a person (other than a Minister) who is a party to a work agreement “is an approved sponsor” and is not required to apply for approval as a sponsor or to be approved as a sponsor in relation to a class of sponsor under s.140E of the Act.

  4. A “work agreement” means an agreement that satisfies the requirements prescribed by the Regulations (s.5(1)).  Regulation 2.76 relevantly includes the following:

    (2) A work agreement :

    (a) must be between:

    (i) the Commonwealth, as represented by the Minister, or by the Minister and 1 or more other Ministers; and

    (ii) a person, an unincorporated association or a partnership in Australia; and

    (b) must be a labour agreement that authorises the recruitment, employment, or engagement of services of a person who is intended to be employed or engaged as a holder of a Subclass 457 (Business (Long Stay)) visa; and

    …

  5. Other clauses in reg.2.76 deal with work agreements in relation to the recruitment of persons proposed to take part in activities of a party to the agreement as the holder of a Subclass 421 (Sport) or a Subclass 428 (Religious Worker) visa. 

  6. The term “labour agreement” is defined in reg.1.03 as follows:

    labour agreement means a formal agreement entered into between:

    (a) the Minister, or the Employment Minister; and

    (b) a person or organisation in Australia;

    under which an employer is authorised to recruit persons to be employed by that employer in Australia.

  7. There is no reference to a sponsor or to sponsorship in subcl.457.223(2). Rather, this provision specifies criteria for a Subclass 457 visa in the labour agreement stream that includes an approved nomination of an occupation which is the subject of a labour agreement and nomination of the applicant by a party to the labour agreement.

  8. Section 140GB is entitled “Minister to approve nominations”.  It provides:

    1) An approved sponsor may nominate:

    (a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

    (i) the applicant or proposed applicant's proposed occupation; or

    (ii) the program to be undertaken by the applicant or proposed applicant; or

    (iii) the activity to be carried out by the applicant or proposed applicant; or

    (b) a proposed occupation, program or activity.

    (2) The Minister must approve an approved sponsor's nomination if prescribed criteria are satisfied.

    (3) The regulations may establish a process for the Minister to approve an approved sponsor's nomination.

    (4) Different criteria and different processes may be prescribed for:

    (a) different kinds of visa (however described); and

    (b) different classes in relation to which a person may be approved as a sponsor.

  9. The criteria for approval of a nomination under s.140GB in relation to both a standard business sponsor and a party to a work agreement (other than a Minister) who has nominated an occupation in relation to an applicant for a Subclass 457 visa are set out in reg.2.72. One of the requirements of reg.2.72(5) is that the “Minister is satisfied that [the standard business sponsor or party to a work agreement] has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.”Regulation 2.73 contains the process for such a nomination (and see regs.2.74 and 2.75). 

  10. Of particular relevance in this case are the provisions which apply to determine whether a delegate’s decision is an MRT-reviewable decision. Part 5 of the Act deals with review by the Migration Review Tribunal. Section 338 of the Act sets out which decisions are “MRT-reviewable” and s.347(2) sets out the standing of those entitled to seek review.

  11. Section 338(2) provides (emphasis added):

    A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:

    (a) the visa could be granted while the non-citizen is in the migration zone; and

    (b) the non-citizen made the application for the visa while in the migration zone; and

    (c) the decision was not made when the non-citizen:

    (i) was in immigration clearance; or

    (ii) had been refused immigration clearance and had not subsequently been immigration cleared; and

    (d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

    (i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

    (ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

  12. A Subclass 457 visa is a temporary visa of a kind prescribed for the purposes of s.338 (see reg.4.02(1A)) of the Act.

  13. Under s.337, in Part 5 of the Act the expression “sponsored” has the same meaning as in the Regulations.  Division 4.1 of Part 4 of the Regulations deals with review of decisions of the Migration Review Tribunal.  Regulation 4.02(1AA), which was inserted in the Migration Regulations effective from 14 September 2009 is of particular importance. It provides:

    For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act.

  14. Under reg.4.02(4) a decision by the Minister under s.140E(1) to refuse a person’s application for approval as a sponsor in relation to one or more classes of sponsor and also a decision under s.140GB(2) to refuse to approve a nomination is an MRT-reviewable decision.

The Parties’ submissions

  1. In essence, the applicant submitted that the Tribunal erred in finding that s.338(2)(d) of the Act was applicable to the review application because it was not a criterion for the grant of the relevant visa that an applicant be “sponsored by an approved sponsor”. 

  2. The applicant submitted that a plain reading of the words of s.338(2)(d) of the Act and a consideration of the legislative history of the sponsorship and nomination provisions in the Migration Act and Regulations did not support the view that a criterion for the grant of a Subclass 457 visa in the labour agreement stream was that the non-citizen be sponsored by an approved sponsor. Reference was made to the Explanatory Memorandum to the Migration Legislation Amendment (Sponsorship Measures) Bill 2003 (Cth) which introduced s.338(2)(d) and described the purpose of this provision as to:

    …ensure that only those visa applicants who have an approved sponsor, or are seeking review of a decision to refuse to approve sponsorship, may apply to the MRT for review of a decision to refuse to grant a prescribed visa.  This is to prevent abuse of the merits review process by refused visa applicants, who have no sponsor, and therefore no ability to meet the criteria for grant of the visa, seeking to extend their stay in Australia by lodging a review application.

  3. It was submitted that in order to meet the criteria in subcl.457.223(2) in relation to the labour agreement stream the applicant had to be “nominated” by an approved sponsor (in the sense of a party to a labour agreement) as at the time of decision, but that there was no requirement that the applicant actually be “sponsored” by an approved sponsor. Counsel for the applicant acknowledged that subcl.457.223(2)(b)(ii)(A) required that a nomination of an occupation be “approved” under s.140GB of the Act and that an “approved sponsor” (that is, in a case such as the present one, the party to the labour agreement by virtue of s.5(1) and reg.2.76(2)(a)) had to nominate the visa applicant in relation to an occupation in accordance with the procedure in reg.2.73. However it was contended that there was no requirement, whether in subcl.457.223(2) or in s.140GB or elsewhere in the Migration Act or Regulations that the approved sponsor actually “sponsor” an applicant for a Subclass 457 visa based on the labour agreement stream.

  4. It was submitted that the requirement that the nominator had to be within the s.5(1) definition of “approved sponsor” in order to meet s.140GB, did not mean that it was a criterion that the applicant be sponsored by an approved sponsor. Counsel for the applicants pointed out that pursuant to s.31(3) and reg.2.03 the criteria for a visa are those set out in Schedule 2 to the Regulations. It was contended that in the absence of any reference to sponsorship by an approved sponsor it could not be said that this was a “criterion” for a Subclass 457 visa in the labour agreement stream (that is, based on meeting the criteria in subcl.457.223(2)).

  5. The applicant also contended that it could be inferred that the legislative purpose of making the nomination requirement a “time of decision” criterion in subcl.457.223(2) was to provide the applicant with an opportunity to meet those requirements by the time of the Tribunal decision (Esteron v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 126 at 131 – 133; [1995] FCA 1252 and Minister for Immigration and Multicultural Affairs v Lim (2001) 112 FCR 589; [2001] FCA 512 at [4]). It was said that by conflating the nomination requirements in subcl.457.223(2) with the sponsorship requirements in s.338(2)(d), the Tribunal not only read something into the criteria which was not there, but also undermined the purpose of s.338(2)(d) by, in effect, blocking the applicant’s access to merits review by the Tribunal in circumstances where a person in the position of the applicant did not come within the class of persons identified in the Explanatory Memorandum in relation to the 2003 Amendment Regulations as being excluded by s.338(2)(d) of the Act.

  6. The applicant submitted that this interpretation followed from a plain reading of the provisions in question. In any event it was contended that it was a well known principle of statutory construction that clear words of intent were required to “overthrow fundamental principles, infringe rights or depart from the general system of law” (see for example Potter v Minahan (1908) 7 CLR 277 at 304; [1908] HCA 63 per O’Connor J; Bropho v State of Western Australia and Another (1990) 171 CLR 1 at 18; [1990] HCA 24 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Thompson v Australian Capital Television Pty Limited and Others (1994) 54 FCR 513 at 526; [1994] FCA 1563 per Burchett and Ryan JJ; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 492; [2003] HCA 2 at [30] per Gleeson CJ). It was submitted that a similar principle applied in relation to statutory rights and that it could be said that a statutory right to merits review was, as Finn J had pointed out in Buck v Comcare (1996) 66 FCR 359 at 364 – 365; [1996] FCA 1485 in relation to a statutory right to compensation,:

    …a right of sufficient significance to the individual …, that, where there may be doubt as to Parliament’s intention, the courts should favour an interpretation which safeguards the individual.  To confine our interpretative safeguards to the protection of “fundamental common law rights” is to ignore that we live in an age of statutes and that it is statute which, more often than not, provides the rights necessary to secure the basic amenities of life in modern society. 

  7. The applicant also submitted that prior to the introduction of reg.4.02(1AA) there would have been no doubt that a person in the applicant’s position would have had a right of merits review by the Tribunal and that on a plain reading reg.4.02(1AA) did not take away this right.  In the alternative there was said to be sufficient ambiguity to read reg.4.02(1AA) in a way that did not extinguish an applicant’s pre-existing right to seek merits review of a refusal of a Subclass 457 visa under the labour agreement stream. 

  8. Counsel for the first respondent submitted that the applicant’s claim that subcl.457.223(2) and s.140GB only referred to the applicant being “nominated” not “sponsored”, and hence that s.338(2)(d) had no application, overlooked reg.4.02(1AA). It was contended that the requirement in subcl.457.223(2)(ii) that “a nomination of an occupation in relation to the applicant…has been approved under s 140GB of the Act” necessarily required that the applicant had been “identified” in that nomination by an approved sponsor because of the terms of s.140GB(1) and (2). Such an applicant was thereby said to be within the meaning of “sponsored” because of reg.4.02(1AA). 

  9. On this basis it was said that it “followed” that para.457.223(2)(b) was a criterion for grant of a Subclass 457 visa that the applicant was sponsored by an approved sponsor and that s.338(2)(d) applied. It was submitted that as s.338(2)(d) was not satisfied by the applicant the Tribunal had no jurisdiction to review the delegate’s decision, as it correctly held.

  10. This outcome was said to accord with the legislative intention of the 2009 amendments as described in the Explanatory Statement to the Migration Regulations 2009 (No 5) Amendment Regulations 2009 (No 1) which inserted reg.4.02(1AA) and stated:

    New subregulation 402(1AA) provides that for the purposes of section 337 of the Act, the term “sponsored” includes being identified in a nomination under section 140GB of the Act.  Section 337 sets out the interpretation provisions for part 5 of the Act, which relate to merits review.  It provides that “sponsored” has the same meaning as in the regulations. 

    This amendment ensures that the term “sponsored” is defined to include being identified in a nomination under section 140GB of the Act so that paragraph 338(2)(d) of the Act applies to visas within the enforceable sponsorship framework in Division 3A of Part 2 of the Act. (Emphasis added.) 

  11. It was also submitted that there was no presumption against taking away a right to merits review in the context of a body like the MRT (which is the subject of very detailed statutory prescriptions of what is and is not reviewable) in contrast to a more general merits review body such as the Administrative Appeals Tribunal (see Australian Postal Corporation v Forgie and Another (2003) 130 FCR 279; [2003] FCAFC 223 at [66]), but that in any event, applying ordinary principles of construction there was no doubt as to Parliament’s intention so that the principle referred to in Buck v Comcare had no role to play (and see PPHF and Others v Director-General of Security (2011) 193 FCR 436; [2011] FCAFC 70 at [38] per Robertson J in relation to the jurisdiction of the Administrative Appeals Tribunal) .

Resolution

  1. As the first respondent contended the only issue in these proceedings is whether the Tribunal has jurisdiction.  This is an issue to be decided by the court on the evidence before it. (See Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [19]).

  2. The Tribunal only has jurisdiction in respect of an MRT-reviewable decision (s.348(1)). Section 338(2) defines an MRT-reviewable decision. Paragraph 338(2)(d) limits the reviewability of decisions to refuse to grant certain temporary visas “where it is a criterion for the grant of the visa that the [applicant] is sponsored by an approved sponsor”.  In such a case a decision is only reviewable if the applicant “is sponsored by an approved sponsor” at the time of the review application (s.338(2)(d)(i)) or if an application for review of a decision not to approve the sponsor has been made to the MRT and is pending at the time of the application to review the decision to refuse to grant the visa (s.338(2)(d)(ii)).

  3. If a visa applicant relies on nomination by a party to a proposed labour agreement that party, in effect, becomes an approved sponsor once the labour agreement was entered into in accordance with the definition of “approved sponsor”. No approval of the person as a sponsor under s.140E is required. However there is no provision for review by the MRT of any failure by a Minister to enter into such a labour agreement. Hence s.338(2)(d)(ii) can have no operation. In contrast, a refusal to approve a person as a sponsor under s.140E of the Act is reviewable (see reg.4.02(a)). Thus, if the respondent’s contention that s.338(2)(d) applies to an applicant for a Subclass 457 visa based on a nomination by a party to a labour agreement is correct, a decision to refuse to grant such a visa would only be reviewable if the labour agreement was in effect at the time of the application for review of the visa refusal within s.338(2)(d)(i) of the Act.

  4. It is not in dispute that a Subclass 457 visa is a temporary visa of a kind prescribed for the purposes of s.338(2)(d) of the Act (see reg.4.02(1A)(k)). The criteria for a Subclass 457 visa are contained in Schedule 2 to the Migration Regulations (see s.31 and reg.2.03). At the time of decision the applicant must meet the requirements of one of subclauses (2), (4), (7A), (8), (9) or (10) of cl.457.223.

  5. The only subclause in issue in this case is subcl.457.223(2) which relevantly requires that the occupation specified in the application be the subject of a labour agreement, that a nomination of an occupation in relation to the visa applicant by a party to the labour agreement be approved under s.140GB of the Act and that the applicant be nominated by a party to the labour agreement. The other criteria in that subclause are not in issue in these proceedings.

  6. The applicant sought a Subclass 457 visa on the basis that she would meet the criteria in subcl.457.223(2) by the time of the delegate’s decision.  However there was no labour agreement in place at that time.  The delegate found that the applicant could not meet the criterion that she be nominated by a party to a labour agreement because her prospective employer was not a party to a labour agreement. 

  7. The applicant sought review by the Tribunal on the basis that as negotiations for a labour agreement between the Minister and her proposed employer were ongoing it was possible that she would be able to meet subcl.457.223(2) by the time of a decision by the Tribunal. 

  8. Had the applicant been relying on a nomination and employment by a sponsor who sought approval under s.140E of the Act (for example as a standard business sponsor within subcl.457.223(4)) any decision under s140E(1) to refuse to approve such a person as a sponsor would be reviewable. In such circumstances s.338(2)(d)(ii) would apply and the lack of an approved sponsor at the time of review application in relation to a visa refusal would not necessarily mean that the decision to refuse the visa was not an MRT-reviewable decision.

  9. However on the view taken by the first respondent a decision to refuse a Subclass 457 visa based on the criteria in subcl.457.223(2) would not be reviewable if no labour agreement between a Minister and the proposed employer had been entered into by the time of the review application.

  10. As a labour agreement in relation to recruitment of intended holders of Subclass 457 visas is a work agreement (see regs.1.03 and 2.76), s.140E of the Act (which provides for the Minister to approve a person as a sponsor in relation to a class of sponsor) does not apply. It was neither necessary nor possible for the applicant’s proposed employer to be approved in relation to a prescribed class of sponsor as a sponsor under s.140E of the Act insofar as reliance was placed on the labour agreement stream in subcl.457.223(2).

  1. While Division 3A of Part 2 (in which s.140E appears) applies to visas of a prescribed class (see s.140A) including, by virtue of reg.2.56, Subclass 457, the requirement of obtaining the approval of the Minister as a sponsor under s.140E relates only to approval “in relation to one or more classes prescribed for the purpose of subsection (2)”.  Regulation 2.58 makes it clear that this means approval in relation to a “class” of sponsor.  Relevantly for the purposes of a Subclass 457 visa a standard business sponsor is the only such class of sponsor (see subcl.457.223(4)). 

  2. It is the case that the definition of “approved sponsor” in s.5(1) of the Act includes not only a person approved by the Minister under s.140E but also a person other than a Minister who is a party to a work agreement.

  3. Hence, both such kinds of “approved sponsor” may nominate an applicant under s.140GB of the Act and are subject to sponsorship obligations, although the general sponsorship obligations in the Regulations may be varied by a term of a work agreement (see s.140H).

  4. However the issue is not whether a party to a labour agreement (that is a work agreement under s.5(1)) is an approved sponsor for the purposes of the application of provisions that impose obligations on approved sponsors in Division 3A of Part 2 of the Act. The case turns on whether it is a “criterion for the grant of” a visa where the application is based on meeting subcl.457.223(2) that the non-citizen is sponsored by an approved sponsor. This requires consideration of s.338 of the Act and that part of the Regulations that relates to review of decisions by the MRT as s.337 provides that in Part 2 of the Act sponsored “has the same meaning as in the regulations”. 

  5. First, the fact that a Subclass 457 visa is a temporary visa of a kind prescribed (by reg.4.02(1A)(k)) for the purposes of s.338(2)(d) is not determinative. This is because s.338(2)(d) clearly applies to Subclass 457 visa applications based on the criteria in subcl.457.223(4) which, relevantly, requires a nomination of an occupation in relation to the applicant to be “made by a person who was a standard business sponsor at the time the nomination was approved” (see subcl.457.223(4)(a)(ii)(A)). 

  6. There is no such requirement in subcl.457.223(2). There is nothing in the language of subcl.457.223(2) to suggest that the visa applicant must be sponsored by an approved sponsor. All that is required is that there be “a nomination of an occupation in relation to the applicant…that has been approved under section 140GB of the Act”.  It is also necessary for the applicant to be “nominated by a party to the labour agreement, but this does not of itself make it a criterion for a Subclass 457 visa that the applicant be “sponsored” by the party to the labour agreement. Although the definition of “approved sponsor” includes a party to a work agreement, such a party does not require approval as a sponsor under s.140E.

  7. In the absence of reg.4.02(1AA) it would be clear that the limit on review in s.338(2)(d) did not extend to applications based on the criteria in subcl.457.223(2). Both subcl.457.223(2) and s.140GB refer only to a nomination, not to sponsorship.

  8. Section 337 provides that “nominated” has the same meaning in the Regulations, but the word is not otherwise defined in the Act or Regulations. Had it been intended to cover circumstances within subcl.457.223(2)(b) to have the effect that the restrictions in s.338(2)(d) applied, this could have been made explicit.

  9. The respondent contended that reg.4.02(1AA) made it clear that subcl.457.223(2)(b) amounted to a criterion that the applicant was sponsored by an approved sponsor because it extended the meaning of sponsored for the purposes of s.337 of the Act (and hence Part 5 in which s.338 appears) to include “being identified in a nomination under section 140GB of the Act”. 

  10. However subcl.457.223(2) does not expressly require the applicant to be identified in a nomination under s.140GB of the Act. Rather it requires “a nomination of an occupation in relation to the applicant” to have been “approved” under s.140GB of the Act.

  11. Importantly, in contrast the criteria applicable to each of the other subclasses of visa which can be sought on the basis of a work agreement (a subclass 421 (Sport) visa and a Subclass 428 (Religious Worker) visa) (see reg.2.76) expressly include a requirement that “the applicant is identified in a nomination of an occupation, a program or an activity approved under s.140GB of the Act” (emphasis added).  If it was intended that reg.4.02(1AA) was to apply to the criteria in subcl.457.223(2) such language could have been adopted when the relevant criteria for each of the subclasses of visa were amended in 2009.  The amendments to subcl.457.223(2) did not introduce a criterion that the application be “identified in a nomination under section 140GB of the Act” notwithstanding the use of this expression in each of reg.4.02(1AA) and the criteria in subcll.421.222(a) and 428.222(a). The failure to use the language of reg.4.02(1AA) in the criteria in subcl.457.223(2) is consistent with the applicant’s submission that the legislative history of the sponsorship and nomination provisions and their amendment in 2009 supports the view that reg.4.01(1AA) was not intended to limit access to merits review by the Tribunal by an applicant for a Subclass 457 visa in the labour agreement stream. 

  12. Section 338(2)(d) was introduced to the Migration Act in 2003. At that time the criteria for certain temporary visas included a requirement that the employer be a sponsor approved under the then applicable Regulations. Former subcl.457.223(2) did not contain such a requirement. The concept of approved sponsor did not include a party to a work agreement and was limited to persons who had been approved by the Minister as a sponsor of a person and had consented to sponsor that person for a visa (see former definition of “approved sponsor” in s.5(1) and former s.140D of the Act).

  13. The system of sponsorship and nomination of visa applicants underwent a significant change on 14 September 2009 pursuant to the Migration Legislation Amendment (Worker Protection) Act 2008 (Cth) and the Migration Amendment Regulations 2009 (No 5) (SLI number 115 of 2009) as amended by the Migration Amendment Regulations 2009 (No 5) Amendment Regulations 2009 (No 1) (SLI number 203 of 2009). 

  14. It is the case that the stated purpose of the 2008 Amendment Act (as set out in the Outline to the Explanatory Memorandum, Migration Legislation Amendment (Worker Protection Bill, 2008)) was to “enhance the framework for the sponsorship of non-citizens seeking entry to Australia” through a number of measures, including providing a structure for better defined sponsorship obligations, sanctions and monitoring.  However the issue of the criteria for various subclasses of visa is distinct from the issue of whether sponsorship obligations were to apply to parties to labour agreements by virtue of their inclusion in the definition of “approved sponsor”. 

  15. The Amendment Regulations amended the criteria for a number of subclasses of temporary skilled visas by substituting a criterion that an applicant be nominated by an approved sponsor for the previous criterion of sponsorship by a person or body who met certain requirements including being approved under the then applicable Regulations.  Counsel for the applicant characterised the visas to which such changes applied as temporary non-business sponsored visas.  They include Subclass 411 (Exchange) visas, Subclass 419 (Academic Visitors) visas, Subclass 420 (Entertainment) visas, Subclass 421 (Sport) visas, Subclass 423 (Media and Film Star) visas, Subclass 427 (Domestic Worker – Temporary – Executive) visas, Subclass 428 (Religious Worker) visas and Subclass 442 (Occupational Trainee) visas. 

  16. Nomination was no longer part of the process of becoming an “approved sponsor”. Rather, from that time on a nomination was to be made by a person who was already an approved sponsor (see Explanatory Memorandum to the Migration Legislation Amendment (Worker Protection) Bill 2008 at [78] – [79]).  The former definition of “approved sponsor” was replaced with the definition that provided that a person was an approved sponsor if either that person was approved as a sponsor under s.140E or was a party to a work agreement. This moved forward the point at which a person became an approved sponsor (Explanatory Memorandum at [13]). Approved sponsors now have to satisfy sponsorship obligations at an earlier period in time. As the Explanatory Memorandum makes clear (at [16]) the inclusion of parties to a work agreement as approved sponsor means that they are also required to satisfy prescribed sponsorship obligations (unless varied by the work agreement) and are subject to civil penalty provisions, investigation powers, information disclosure powers and other provisions in Division 3A of Part 2 of the Act.

  17. The separate issue of the review of decisions by the MRT was addressed by amendments to the criteria for the various subclasses of visas and in particular the provisions in Part 4 of the Regulations. Thus, reflecting the fact that it was no longer an express criterion for several of the temporary classes of visa prescribed for the purposes of s.338(2)(d) that the visa applicant be sponsored by an approved sponsor, reg.4.02(1AA) extended the meaning of sponsored for s.337 of the Act (and hence for s338(2)(d)) to include “being identified in a nomination under s.140GB of the Act.” However, as pointed out for the applicant Parliament did not include in the new form of subcl.457.223(2) the phrase inserted in the criteria for such other temporary skilled visas (what the applicant’s counsel described as non-business temporary skilled visas) namely, “the applicant is identified in a nomination of an occupation, a program or an activity approved under section 140GB of the Act” (see for example subcll.411.222(a), 419.222(a), 420.222(a), 421.222(a), 423.222(a), 427.222(a) and 428.222(a))

  18. Reg.4.02(1AA) was inserted into the Regulations by Item 10A in reg.2.01(2)(c) of the Migration Amendment Regulations 2009 (No 5) Amendment Regulations 2009 (No 1).  The wording of this regulation precisely replicates the wording of the phrase in the new criteria also introduced by the 2009 Amendment Regulations in relation to those other subclasses of temporary skilled visas, but it does not resemble the criteria in subpara.457.223(2). 

  19. The language of reg.4.02(1AA) is clear. Applying ordinary principles of construction there cannot be said to be a doubt that Parliament’s intention was only to extend the concept of “sponsored” for the purposes of s.337 of the Act and hence for s.338(2)(d) (which as an exclusionary provision should be construed with particular care to discern its meaning and operation as Robertson J suggested in PPHF at [38]) to visas for which it is a criterion that a non-citizen visa applicant is “identified in a nomination under s.140GB” of the Act. There is no such criterion in subcl.457.223(2).  On this basis there is no need to have recourse to the principle Finn J referred to in Buck v Comcare at 365.

  20. It is not in dispute that prior to the introduction of reg.4.02(1AA) there would have been no doubt that a person in the applicant’s position would have had a right of merits review by the Migration Review Tribunal.  On a plain reading reg.4.02(1AA) did not take away this right for applicants for Subclass 457 visas in the labour agreement stream. Moreover, if the meaning of reg.4.02(1AA) is not plain or if there may be doubt as to Parliament’s intention it is relevant that it is a well-known principle of a statutory construction that clear words of intent are required to “overthrow fundamental principles, infringe rights or depart from the general system of law” (see for example Potter v Minahan at 304 (per O’Connor J); Bropho v State of Western Australia and Another at 18 (per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Thompson v Australian Capital Television Pty Limited and Others at 526 (per Burchett and Ryan JJ); Plaintiff S157/2002 v The Commonwealth of Australia (2003) at 492 per Gleeson CJ). Notwithstanding the fact that review by the MRT is governed by detailed statutory provisions, a similar principle may apply in relation to such statutory rights (see Buck v Comcare). 

  21. It is also relevant that s.338(2)(d) affects a significant statutory right of an individual. As Finn J stated in Buck v Comcare at [20] in relation to a statutory right to compensation:

    That right does not fall into the category of "common law" rights which traditionally have been safeguarded from legislative interference etc in the absence of clear and unambiguous statutory language: cf JJ Doyle QC, "Common Law Rights and Democratic Rights", PD Finn (ed.), Essays on Law and Government, Vol 1, 158 ff. Yet it is a right of sufficient significance to the individual in my view, that, where there may be doubt as to Parliament's intention, the courts should favour an interpretation which safeguards the individual. To confine our interpretative safeguards to the protection of "fundamental common law rights" is to ignore that we live in an age of statutes and that it is statute which, more often than not, provides the rights necessary to secure the basic amenities of life in modern society.

  22. The same may be said about the right of an unsuccessful visa applicant to seek review by the MRT notwithstanding the difference between the MRT and the AAT. If there is any doubt as to Parliament’s intention, s.338(2)(d) and reg.4.02(1AA) should be interpreted in a manner which preserves the right of the individual applicant to seek merits review.

  23. On this basis it can be inferred that the purpose of reg.4.02(1AA) was not to take away what was an existing right of an applicant to seek merits review of a decision to refuse a Subclass 457 visa in the labour agreement stream. Rather it ensures that applicants who before 14 September 2009 had been limited in their access to merits review where they applied for a visa in relation to which there was a criterion that they were to be sponsored, are now to be similarly limited in their access to merits review where it is a criterion that they be identified in nomination of an occupation, program or activity approved under s.140GB of the Act. In other words, as the applicant as submitted, reg.4.02(1AA) maintains the status quo so as to ensure that visa applicants who did not previously have access to merits review where they had failed to secure sponsorship would be in the same position under the new regime.

  24. If Parliament had intended to introduce a restriction on merits review for persons seeking a Subclass 457 visa based on the criteria in subcl.457.223(2) who had not secured a labour agreement by the time of merits review it would have been simple to either draft reg.4.02(1AA) to provide not only that “sponsored” included being “identified in a nomination under section 140GB of the Act”, but also a “nomination of an occupation in relation to the applicant that had been approved under s.140GB of the Act” or to frame the criteria in subcl.457.223(2) in the same terms as in other provisions such as subcl.421.222(a) and subcl.428.222(a).

  25. As a decision to refuse a Subclass 457 Business (Long Stay) visa under the labour agreement stream is not a decision where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, the Tribunal erred in finding that because of s.338(2)(d) it did not have jurisdiction to consider the application made on 16 June 2010 for review of the decision of a delegate of the first respondent to refuse the grant of a Temporary Business Entry (Class UC) visa to the applicants.

  26. The matter should be remitted for redetermination according to law. 

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  13 December 2011

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Minister for Immigration and Multicultural Affairs v Lim [2001] FCA 512
Minister for Immigration and Multicultural Affairs v Lim [2001] FCA 512
Minister for Immigration and Multicultural Affairs v Lim [2001] FCA 512